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Property rights in the defence of nature

Over a century ago, in 1885, Antoine Ratté filed a lawsuit against several of Canada’s most notorious polluters. That suit and the government’s reaction to it established a shameful pattern that governs pollution across Canada to this day.

The owner of a waterfront lot and pleasure boat rental business on the Ottawa River, Mr. Ratté objected to water pollution from upstream sawmills. Sawdust, bark and blocks of wood piled up on the river bank and formed floating islands, interfering with boat traffic. Stinking gasses, accumulating in the rotting sawdust, frequently exploded. Unwilling to tolerate this violation of his property rights, Mr. Ratté took the offending lumber barons to court, where he sought damages and an injunction to stop their dumping wastes into the river.

Mr. Ratté’s lawsuit alarmed the Ontario government, but not because of the pollution. To protect the sawmills, the government passed a law curbing the courts’ ability to protect Mr. Ratté’s rights. Citing “the public interest,” the government ordered judges to consider the lumber trade’s economic importance before prohibiting pollution.

So began a calamitous Canadian tradition of governments overriding property rights that citizens would otherwise use to protect their lands and waters. This tradition—and the need to change it—is the subject of my new book, Property Rights in the Defence of Nature, which has just been released by Earthscan.

Property Rights in the Defence of Nature documents the many ways in which governments have supported polluters at the expense of their victims. It describes the protection afforded nickel smelters in the 1920s, pulp and paper mills in the 1940s, and sewage plants in the 1950s. By now, almost no major polluter lacks special protection. Laws shield shippers from the consequences of oil spills and nuclear power plant operators from the consequences of major accidents.

It hasn’t always been this way, and it needn’t remain this way in the future. For centuries, common law property rights empowered people to protect their environments. Those who had been harmed by others’ activities had recourse to the courts where they could obtain injunctions against the offenders. Property Rights in the Defence of Nature argues that it is time to restore such rights.

Strong property rights protect the environment by vesting responsibility in those individuals most directly affected by pollution. We can count on the people whose health and livelihoods depend on clean air, land, and water to make wise decisions about these resources: it is in their self interest to do so. Governments also act in their own self interest. But that interest keeps them focused on the next election, all too often spurring projects that create short-term jobs and become long-term environmental disasters.

Back in 1885, the government’s desire to protect a source of public revenues drove its decision to allow sawmill pollution. Only those who had a direct interest in clean water—people like Antoine Ratté, whose customers didn’t want to row through putrid masses of rotting sawdust—fought the mill wastes. Until the government intervened, Mr. Ratté had the tools to save the Ottawa River. The time has come for Canadians to reclaim those tools. Empowered by strong property rights, we can break the pattern established in 1885 and take back responsibility for our precious land and resources.